Gonzales on Comey

Glenn Greenwald sends along the following exchange between Schumer, Specter and Gonzales during the recent Judiciary Committee NSA wiretap hearings. As Glenn notes in the email, Gonzales seems to agree that Comey could appear under the same rules of testimony as Gonzales, i.e., give his own views of the program but not disclose what he did or said while at the Justice Department:

SCHUMER: It’s been reported by multiple news outlets that the former number two man in the Justice Department, the premier terrorism prosecutor, Jim Comey, expressed grave reservations about the NSA program and at least once refused to give it his blessing. Is that true?

GONZALES: Senator, here’s the response that I feel that I can give with respect to recent speculation or stories about disagreements.

There has not been any serious disagreement — and I think this is accurate — there has not been any serious disagreement about the program that the president has confirmed. There have been disagreements about other matters regarding operations which I cannot get into.

I will also say…

SCHUMER: But there was some — I’m sorry to cut you off — but there was some dissent within the administration. And Jim Comey did express, at some point — that’s all I asked you — some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we’re talking about today. They dealt with operational capabilities that we’re not talking about today.

SCHUMER: I want to ask you, again, about — we have limited time.

GONZALES: Yes, sir.

SCHUMER: It’s also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I’m here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I’m here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you’re identifying had concerns about this program.

SCHUMER: There are other reports, I’m sorry to — you’re not giving me a yes-or-no answer here. I understand that.

Newsweek reported that several Department of Justice lawyers were so concerned about the legal basis for the NSA program that they went so far as to line up private lawyers. Do you know if that’s true?

GONZALES: I do not know if that’s true.

SCHUMER: Now, let me just ask you a question here.

You mentioned earlier that you had no problem with Attorney General Ashcroft, someone else — I didn’t want to ask you about him; he’s your predecessor — people have said have doubts. But you said that you had no problem with him coming before this committee and testifying when Senator Specter asked, is that right?

GONZALES: Senator, who the chairman chooses to call as a witness is up to the chairman.

SCHUMER: The administration doesn’t object to that, do they?

GONZALES: Obviously, the administration — by saying that we would have no objection doesn’t mean that we would waive any privileges that might exist.

SCHUMER: I understand. I got that.

But I assume the same would go for Mr. Comey, Mr. Goldsmith and any other individuals. Assuming you didn’t waive executive privilege, you wouldn’t have an objection to them coming before this committee.

GONZALES: Attorney-client privilege, deliberative privilege. To the extent that there are privileges, it is up to the chairman to decide who he wants to call as a witness.

But let me just say that if we’re engaged in a debate about what the law is and the position of the administration, that is my job and that’s what I’m doing here today.

SCHUMER: I understand. And you are doing your job.

And that’s why I am requesting, as I have in the past, but renewing it here today, reaffirmed even more strongly by your testimony and everything else, that we invite these people, that we invite former Attorney General Ashcroft, Deputy Attorney General Comey, OLC Chair Goldsmith to this hearing and actually compel them to come if they won’t on their own.

And as for privilege, I certainly…

SPECTER: If I may interrupt you for just one moment…

SCHUMER: Please.

SPECTER: … you’ll have extra time…

SCHUMER: Yes, thank you.

SPECTER: … I think the record was in great shape where I left it at. If you bring in Attorney General Ashcroft, that’s a critical step.

SCHUMER: Right.

SPECTER: It wasn’t that I hadn’t thought of Mr. Comey and Mr. Goldsmith and other people, but I sought to leave the record with the agreement of the attorney general to bring in former Attorney General Ashcroft.

SCHUMER: Mr. Chairman, I respect that. I think others are important as well.

But I want to get to the issue of privilege here.

SPECTER: I’m not saying they aren’t important. I’m just saying, what’s the best way to get them here?

SCHUMER: OK. Well, whatever way we can, I’d be all for.

On privilege — because that’s going to be the issue, even if they come here, as I’m sure you will acknowledge, Mr. Chairman — I take it you’d have no problem with them talking about their general views on the legality of this program, just as you are talking about those; not to go into the specific details of what happened back then, but their general views on the legality of these programs.

SCHUMER: Do you have any problem with that?

GONZALES: General views of the program that the president has confirmed, Senator, that’s — again, if we’re talking about the general views of the…

SCHUMER: I just want them to be able to testify as freely as you’ve testified here, because it wouldn’t be fair if you’re an advocate of administration policies, you have one set of rules and if you’re an opponent or a possible opponent of administration policies, you have another set of rules. That’s not unfair, is it?

GONZALES: Sir, it’s up to the chairman to…

SCHUMER: No, but would you or the administration — you, as the chief legal officer — have any problem with them testifying in the same way you did about general legal views of the program?

GONZALES: I would defer to the chairman.

SCHUMER: I’m not asking you — sir, in all due respect, I’m not asking you what the chairman thinks. He’s doing a good job here, and I don’t begrudge that one bit.

GONZALES: Sir, my answer is…

SCHUMER: I’m asking you what the administration would think in terms of exercising any claim of privilege.

You’re not going to have — I’m sorry, here — you’re not going to have different rules for yourself, an administration advocate, then for these people who might be administration dissenters in one way or another, are you?

GONZALES: Sir, I don’t know if you’re asking what are they going to say…

SCHUMER: I’m not asking you that.

Would the rules be same? I think you answer that yes or no.

GONZALES: If they came to testify?

SCHUMER: Correct.

GONZALES: Well, sir, the client here is the president of the United States. I’m not sure it’s in my place to offer…

SCHUMER: Or his chief…

GONZALES: … up a position or my recommendation to you about what I might recommend to the president of the United States would not be appropriate here.

SCHUMER: What would be — I just am asking you, as a very fine, well-educated lawyer, should or could the rules be any different for what you are allowed to say with privilege hovering over your head and what they are allowed to say with those same privileges hovering over their heads? Should the rules be any different?

If you can’t say "yes" to that, then that’s fundamentally unfair. It’s saying that these hearings, or that — it’s saying really that the administration doesn’t have the confidence to get out the whole truth.

GONZALES: Sir, my hesitation is, quite frankly, I haven’t thought recently about the issue about former employees coming to testify about their legal analysis or their legal recommendations to their client, and that is the source of my hesitation.

SCHUMER: I was just — my time…

SPECTER: Senator Schumer, take two more minutes for my interruption…

SCHUMER: Oh, thank you, Mr. Chairman.

SPECTER: … providing you move to another subject.

(LAUGHTER)

SCHUMER: Well, OK.

(LAUGHTER)

Again, I think this is very important, Mr. Chairman…

SPECTER: Oh, I do too.

SCHUMER: … and I think you would agree.

OK.

SPECTER: If this were a courtroom, I’d move to strike all your questions and his answers, because the record was so much better off before.

(LAUGHTER)

SCHUMER: Well, I don’t buy that, Mr. Chairman.

SPECTER: But take two more minutes on the conditions stated.

SCHUMER: I don’t buy that. I think we have to tie down as much as we can here, OK.

It was an odd exchange — Gonzales seems to be saying that Comey objected to another program. Digby has long speculated that the questions posed by the Democrats on the Committee indicate they have knowledge of some other surveillance program that they can’t talk about, and it would certainly be interesting to hear from Comey himself if he will back Gonzales up on this one. If it’s okay for Gonzales to say there was not internal dissent at the Justice Department over the program surely it would be okay for Comey to either confirm or deny this.

I’ll believe Gonzales hadn’t thought about the issue of former employees testifying before the Committee when Britney and her deep fried Oreos make it onto the New York Social Register. He was obviously very nervous about committing himself on the topic. I have absolutely no idea what Comey would say if he appeared, but since this is a program that needs a whole lot more light shined on it I can’t help but feel that his testimony and that of others (like Bob Barr and Grover Norquist) would be anything but welcome.

Jane Hamsher

Jane is the founder of Firedoglake.com. Her work has also appeared on the Huffington Post, Alternet and The American Prospect. She’s the author of the best selling book Killer Instinct and has produced such films Natural Born Killers and Permanent Midnight. She lives in Washington DC.Subscribe in a reader